4 - Distributing Political Power

Summary

Democratic transition and consolidation in Chile are bounded by four important events: 1) constitutional reform under the military culminating in the 1980 Constitution; 2) the transfer of power to a newly elected democratic government in 1990; 3) significant reform of the Constitution in 2005; and 4) the successful transfer of power to an opposition government in 2010. With respect to each of these events, the contribution of the Chilean courts has been minimal. In fact, Ginsburg (Ch. 1 in this volume) classifies Chile as a case of “judicial irrelevance, in which courts play no discernible role, either as guarantors, triggers or consolidators” of democratic transition. It is widely accepted that neither the ordinary courts nor Chile's Constitutional Court, the Tribunal Constitucional (TC), have aggressively played a rights-based role (Couso 2003, 2004, 2005; Hilbink 2007). However, less often explored is the TC's power-distribution role – despite it being a court expressly designed to adjudicate separation of powers conflicts.

Once democracy was reestablished in 1990, political supporters of the former military regime – represented by the Alianza, an alliance of right and center-right parties – formed a formidable opposition to the center-left-governing Concertación coalition, and turned to the courts as one of multiple political strategies to defend the status quo and promote their political agenda. Over the next fifteen years, the TC was called on to interpret and rearticulate the power relationships set out by the authoritarian regime under new political conditions of competitive democracy. Constitutional ambiguity with respect to the relationship between Legislative and Executive authority produced a series of separation-of-powers conflicts. This chapter is concerned with how the TC exercised its assigned functional role of distributing power in these controversies and how (and why) this role evolved.